Supreme Court Rules that State Merit Statues Don’t apply in Federal Court
In 2019, the Kentucky General Assembly enacted KRS§411.167, the Commonwealth’s “Certificate of Merit” requirement for medical malpractice actions. Designed to reduce unfounded litigation, the statute requires medical malpractice claimants to file an affidavit or declaration alongside their complaint affirming that they have reviewed the facts, consulted with at least one qualified expert, and have a reasonable basis to initiate suit.
Since its passage, KRS§411.167 has been the subject of repeated legal scrutiny. Most recently, in 2024, the Kentucky Supreme Court reaffirmed the statute’s validity in Sanchez v. McMillin, et al. There, the Court held that strict compliance is mandatory: the plaintiff’s failure to file the certificate of merit with the initial complaint entitled the defendants to dismissal of his claims. The decision underscored the General Assembly’s intent to impose a clear procedural threshold before medical malpractice claims may proceed in Kentucky state courts.
United States Supreme Court Rules Similar Statute Invalid in Federal Court
In January 2026, the United States Supreme Court issued a decision regarding a similar procedural statute in Berk v. Choy. In Berk, the Supreme Court considered the validity of a Delaware state statute that required medical malpractice plaintiffs to file an affidavit of merit that accompanies the complaint. The Delaware statute provided that, should the requirements of the statute not be fulfilled, then the clerk of court should refuse to file and docket the complaint.
The Court considered the age-old question of choice of law, in which a federal court must consider whether to apply state or federal law. The federal Rules of Decision Act requires that federal courts apply state substantive law and apply federal law to procedural issues. However, the question of whether a state law is substantive is not cut and dry.
Moreover, if a Federal Rule of Civil Procedure applies to the issue at hand, a federal court may forego determining whether a state law is substantive or procedural, as the federal rule displaces the state law. The Berk Court found that Federal Civil Rules 8 (requirement that a complaint contain a short and plain statement of the claim) and 12 (dismissal based upon failure to state a claim) govern the issue of pleading requirements in medical malpractice cases.
The Court found that Delaware’s affidavit of merit statute directly conflicted with Federal Civil Rule 8, as it required more than a clear and plain statement of the plaintiff’s claim. The Court reasoned that the statute imposed a “prima facie evidentiary requirement” to filing a medical malpractice action.
Accordingly, the Court held that Federal Civil Rule 8 precluded Delaware’s affidavit of merit statute, as the effect of the statute is procedural, and as such, Delaware’s affidavit of merit law does not apply in federal court.
Implications for Medical Providers
With the Supreme Court’s recent ruling in Berk v. Choy, state certificate or affidavit of merit laws are not applicable in federal courts. Given the subjectivity in analysis of whether laws are substantive or procedural, it is likely that this decision will be challenged again within due time.
Currently, most medical malpractice causes of action are state law claims, and as such are required to be filed in state courts. The only exceptions occur where: 1) a plaintiff alleges a federal question of law; or 2) where the parties are citizens of different states and the amount of damages in controversy exceed $75,000. Accordingly, typical medical malpractice actions, involving claims of negligence, are more likely to be filed in state court.
As the law currently stands, KRS§411.167 still applies to medical malpractice actions filed in Kentucky state court. Pursuant to Sanchez, Plaintiffs are required to strictly comply with the statutes and must file a Certificate of Merit alongside their Complaint. Accordingly, KRS§411.167 remains a valid tool for early dismissal of groundless or procedurally flawed lawsuits against medical providers.
Sarah R. Angelucci is an insurance and civil litigation attorney with Sturgill, Turner, Barker & Moloney, PLLC. She can be reached at sangelucci@sturgillturner.com or 859.255.8581. This article is intended as a summary of state and/or federal law and does not constitute legal advice.
This article originally appeared in the Lexington Medical Society March 2026 Newsletter.
